Powell: Internet Would Not Have Flourished Under Title II

The Jan. 15 House Communications Subcommittee hearing featuring former FCC chairs weighing in on potential regulatory rewrites was a wide-ranging affair, but one that frequently "ranged" toward the implications of the court decision vacating the majority of the FCC's Open Internet order.

Current National Cable & Telecommunications Association Chairman Michael Powell, who was FCC chair when the commissioned classified cable broadband as an information service free of the common carrier mandatory access regs that applied to dial-up, warned against trying to classify broadband as a Title II service in the wake of that decision—former Democratic chairmen Michael Copps and Reed Hundt didn't have a problem with going that route.

Asked if broadband have would seen the same level of investment and growth if the FCC had classified it as a telecommunications service, Powell said no, that allowing the capital required to drive that investment and innovation need the flexibility to make choices without the risk of being put under a monopoly-era regulatory model.

Powell said that people should understand that putting broadband under Title II means "instantly applying thousands of pages of decades-old regulations to the Internet, with damaging consequences.

Former Chairman Dick Wiley agreed that Title II would be the wrong move, saying that the FCC should not rush to reinstitute rules, but instead see how the marketplace works and only step in if there is market failure. Wiley said it would be a "big mistake" to turn away from the information services definition of broadband and put in under common carrier regs based on last century railroad regulation. "It makes no sense," he said.

Hundt pointed out the court had indicated the FCC did not necessarily have to apply thousands of pages of regs. He said the FCC could chose specific methods dictated by common carrier treatment without having to apply them all.

The court did signal, citing its decision in Cellco, that the FCC could, using its authority to promote universal broadband, come up with regulations that were consistent with common carrier status—like no blocking or discrimination—without necessarily "conferring" common carrier status.

Copps urged the FCC to reclassify under Title II, saying he was concerned that using 706 authority could wind up being thrown out by another court.

Powell, while strongly opposed to Title II classification, also warned that 706 was extraordinarily broad, so how it was interpreted and applied was important. Powell said that the FCC has a "meaningful" role without crossing the line into common carriage. He said that Congress had not spoken with much clarity and there were potential risks and dangers, though ones that could be worked out through dialogue with Congress.

The section, part of the 1996 Telecommunications Act, directs the FCC to determine whether advanced telecommunications "capability" is being deployed in a reasonable and timely manner to all Americans, and if it determines that is not the case, it may impose "price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment."

It is the FCC's finding in 2010 that broadband was not being deployed in a timely manner—a point argued by Republican commissioners and ISPs at the time—that paved the way for the FCC's Open Internet order. That conclusion was a change from previous FCC findings.

Hundt said he thought the FCC needed to move quickly to open a proceeding on the remanded rules and recraft them using either 706 authority or Title II, or both.

During the hearing, Powell also weighed in on the must-buy mandate, saying it was fatally flawed that the government would make subscribers buy broadcast stations before buying other channels they wanted, particularly since the mandate was imposed on cable operators but not on satellite operators.

He was prompted by Rep. Anna Eshoo (D-Calif.). Eshoo said a communications act rewrite should not preempt revising video regs.